UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4711
VINCENT TYRONE WHITAKER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Malcolm J. Howard, District Judge.
(CR-00-73-HO)
Submitted: April 22, 2002
Decided: July 18, 2002
Before LUTTIG, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. John Stuart Bruce, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Winnie Jordan Reaves,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.
2 UNITED STATES v. WHITAKER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Vincent Tyrone Whitaker was convicted by a jury of one count
each of possession with intent to distribute at least five grams of crack
cocaine, possession with intent to distribute cocaine, and possession
with intent to distribute marijuana, in violation of 21 U.S.C.
§ 841(a)(1) (West 1999 & Supp. 2001); carrying a firearm during and
in relation to a drug trafficking crime, in violation of 18 U.S.C.A.
§ 924(c)(1) (West 2000); and possession of a firearm after having
been convicted of a crime punishable by imprisonment for more than
one year, in violation of 18 U.S.C.A. §§ 922(g), 924(a)(2) (West
2000). (JA Vol. 1, 12-14, 183-84). He appeals his sentence, contend-
ing that the district court improperly enhanced his offense level under
the Sentencing Guidelines1 for obstruction of justice.
The probation officer recommended that Whitaker’s offense level
be enhanced by two levels for obstruction of justice. See USSG
§ 3C1.1 (2000). This recommendation was based upon Whitaker’s
flight from a police officer who unsuccessfully attempted to arrest
him. After Whitaker objected to this enhancement, the probation offi-
cer noted that Whitaker fled from the officer at a high rate of speed,
and referred to USSG § 3C1.2, Reckless Endangerment During
Flight. The district court denied Whitaker’s objection to the enhance-
ment based upon the reasons provided in the addendum to the presen-
tence report. The district court sentenced Whitaker to a total of 295
months imprisonment, five years supervised release, and a $500 spe-
cial assessment.
On appeal, Whitaker argues that his offense level was improperly
enhanced for obstruction of justice because flight from arrest is an
example of conduct to which the obstruction of justice enhancement
1
U.S. Sentencing Guidelines Manual (2000).
UNITED STATES v. WHITAKER 3
does not apply. See USSG § 3C1.1, comment. (n.5(d)). While
Whitaker correctly asserts that the probation officer incorrectly stated
that avoiding or fleeing arrest is an example of conduct that is consid-
ered a proper basis for a § 3C1.1 enhancement, we conclude that the
district court correctly applied a two level enhancement under
§ 3C1.2.
We review the district court’s determination that Whitaker’s con-
duct constituted reckless endangerment under the clearly erroneous
standard. United States v. Sloley, 19 F.3d 149, 154 (4th Cir. 1994).
The adjustment applies if the defendant recklessly created a substan-
tial risk of death or serious bodily injury to another person while flee-
ing from a law enforcement officer. USSG § 3C1.2. A defendant’s
conduct is reckless when he "was aware of the risk created by his con-
duct and the risk was of such a nature and degree that to disregard that
risk constituted a gross deviation from the standard of care that a rea-
sonable person would exercise in such a situation." See USSG
§ 3C1.2, comment. (n.2); § 2A1.4, comment. (n.1). We have previ-
ously held that "the endangerment of the lives of law enforcement
officers and innocent bystanders" is sufficient to support an obstruc-
tion of justice enhancement. United States v. Hicks, 948 F.2d 877, 884
(4th Cir. 1991).2
The record indicates that Whitaker fled from the officer at speeds
more than double the speed limit in the residential area through which
he traveled. Moreover, the officer testified that residents of the neigh-
borhood, including children, were out in their yards at the time of the
pursuit. We are convinced that "[m]ore than mere flight was involved,
and the district court could correctly make a two level adjustment for
obstruction of justice on that basis." Id.
Accordingly, we affirm Whitaker’s convictions and sentence. We
dispense with oral argument because the facts and legal contentions
2
At the time Hicks was sentenced, § 3C1.2 of the Guidelines was not
yet effective. This Court construed § 3C1.1 and determined enhancement
was appropriate under that provision. Hicks, 948 F.2d at 884 n.5. We
conclude that the facts in Hicks clearly also support enhancement under
§ 3C1.2.
4 UNITED STATES v. WHITAKER
are adequately presented in the materials before the Court and argu-
ment would not aid the decisional process.
AFFIRMED